Petitions / Supreme Court Activity

Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. With respect to granted cases, the Supreme Court heard arguments last week in a case originating at the Merit Systems Protection Board, Harrow v. Department of Defense. While no new petitions were filed with the Court, a waiver of right to respond was filed in a pro se case and two reply briefs were filed in a patent case and in a veterans case. Additionally, the Court denied petitions in a patent case and a pro se case. Here are the details.

Granted Cases

Last week, the Supreme Court heard arguments in Harrow v. Department of Defense, a case originating at the Merit Systems Protection Board. In this case, the Supreme Court will determine “whether the 60-day deadline in [5 U.S.C.] Section 7703(b)(1)(A) is jurisdictional.” Our argument recap is posted here.


Waiver of Right to Respond

Samsung Electronics America, Inc. waived its right to respond to the petition in Golden v. Samsung Electronics America, Inc., a pro se case.

New Replies

Replies in support of petitions were filed in two cases.

In Vanda Pharmaceuticals Inc. v. Teva Pharmaceuticals USA, Inc., a patent case, Vanda Pharmaceuticals filed its reply brief. The petition presented the following question:

  • “Whether obviousness requires a showing of ‘predictable’ results, as this Court held in KSR, or a mere ‘reasonable expectation of success,’ as the Federal Circuit has held both before and after KSR?”

In its brief in opposition, Teva asserted “Vanda did not invent tasimelteon.” Rather, Teva continued, “pharmaceutical giant Bristol Myers Squibb (BMS) . . . granted an exclusive license to Vanda” and “Vanda obtained additional patents concerning uses of tasimelteon” after BMS’s patent expired. Teva pointed out, however, “that ‘when a patent “simply arranges old elements with each performing the same function it had been known to perform,” and yields no more than one would expect from such an arrangement, the combination is obvious.’” Teva argued “[t]his is precisely the analysis—and conclusion—of the lower courts here.” Furthermore, Teva argued, “Vanda never raised any question about the legal standard for obviousness before now.”

In its reply brief, Vanda asserts “[t]he Federal Circuit’s reasonable-expectation-of-success standard departs materially from the approach [the Supreme] Court has employed for more than a century.” According to Vanda, “the Federal Circuit’s way-ward standard is now enabling patent challengers to use the ‘mere commencement of a clinical trial [to] show[] that skilled artisans would have reasonably expected the tested methods to succeed.’” Vanda argues this standard “undermin[es] incentives necessary for ‘high-risk, high-investment pharmaceutical research.’” Thus, Vanda maintains, the Federal Circuit’s approach “will inevitably lead to fewer treatments being developed for small and underserved patient populations across the United States.” Furthermore, Vanda argues, it did not “waive[] its argument,” but “[b]ecause it was passed on below . . . the question presented is ripe for review.”

In Bufkin v. McDonough, a veterans case, Bufkin filed his reply brief. The petition presented the following question for review: 

  • “Must the Veterans Court ensure that the benefit-of-the-doubt rule was properly applied during the claims process in order to satisfy 38 U.S.C. § 7261(b)(1), which directs the Veterans Court to ‘take due account’ of VA’s application of that rule?”

In its brief in opposition, the government asserted Bufkin’s argument that “Section 7261(b)(1) of Title 38 ‘calls for a separate review of the benefit-of-the-doubt issue’ that is not limited by the requirements of Section 7261(a) and (c) . . . contravenes the plain text of Section 7261.” Furthermore, the government argued, “[t]he petition does not address or acknowledge Congress’s decision to nest the Veterans Court’s benefit-of-the-doubt review . . . under the same standards of review.” Turning to legislative history, the government maintained the “‘compromise version’ of the bill that was ultimately enacted into law” “‘maintain[s] the current “clearly erroneous” standard of review’” and “provide[s] special emphasis during the judicial process to the ‘benefit of the doubt’ provisions of section 5107(b).”

In its reply brief, Bufkin argues “38 U.S.C. § 7261(b)(1) requires that the United States Court of Appeals for Veterans Claims . . . enforce the benefit-of-the-doubt rule,” which “Congress added . . . to a judicial review statute . . . in response to well-documented failures in the veterans’ claims process.” According to Bufkin, “[i]n defending” the Federal Circuit’s decision that this provision “requires nothing that the Veterans Court is not already required to do by other sections of the same statute,” “[t]he government advances no theory of what § 7261(b)(1) requires.” Thus, Bufkin asserts, “[t]he government’s defense of the Federal Circuit’s rulings cannot be squared with the text of the statute, the history and purpose of its enactment, or bedrock principles of statutory interpretation.”


The Supreme Court denied certiorari in two cases: